Blog No. 211. The Border: No Emergency, But a Continuing Mess

Participants in a caravan of migrants and asylum seekers. PHOTO: THE WALL STREET JOURNAL, April 3, 2018

Respected conservative Max Boot wrote in the Washington Post that the Republican Party had declared moral bankruptcy on March 14. That was the date on which only 12 Republicans in the Senate joined with the 13 Republicans in the House who had previously voted to reject President Trump’s declaration of a national emergency. Boot called the declaration–made to provide funding for the border wall that Congress had refused to authorize–“blatantly unconstitutional and transparently cynical.” He continued:

So only 10 percent of Republicans in Congress have any — any — principles left. By an interesting coincidence, that’s also the percentage of Republican voters who disapprove of Trump. The party of Lincoln — the party that freed the slaves and helped to win the Cold War — is now devoted exclusively to feeding Trump’s insatiable ego and pandering to his endless lust for power.

Boot was perhaps guilty of some hyperbole. The emergency declaration, though clearly unwarranted and ill-advised, may or may not be unconstitutional—there are plausible arguments on both sides of the question, the courts will decide, and the Supreme Court, in its present composition, is likely to tilt toward Trump. Moreover, “moral bankruptcy” has a ring of finality that is arguably too strong—there will be opportunities for redemption on other matters in the not distant future. But admittedly it was a least a significant milestone in the downward descent of the Party.

Republicans who questioned or even opposed the emergency declaration were concerned by the usurpation of Congressional authority and many worried about the precedent being set by such a free-wheeling exercise of presidential power. Might a future Democratic president use an emergency declaration to take action on climate change or gun control? And some feared that funding under the declaration would be taken from military construction projects in their own districts or states. (Their fears were not allayed on Monday when the Pentagon belatedly complied with a request to supply a list of such projects. The list, although lengthy, was preliminary and reflected only projects that might be affected.)

At the same time, many who opposed the declaration took pains to express their support for the President’s goals. For example, Senator Roy Blunt voted for the resolution of rejection but proclaimed that “I fully support President Trump’s commitment to secure the border and build physical barriers wherever they are needed.” Few, if any, members in either party took the occasion to make a factual case for whether the additional funding Trump sought was necessary or not. The bi-partisan Conference Committee which had recommended funding of $1.375 billion for fencing did so only after hearing testimony from Border Patrol officials as to just what they believed were current needs. The substance of that testimony has not been disclosed and neither the public nor rank and file members of the House and Senate have an informed basis for challenging the judgment of the Conference Committee.

The most serious problem at the border is not one that can be solved by additional fencing in any amount. That problem is not, as Trump would have it, an “invasion” of criminals. Any such notion has been convincingly rebutted by numerous studies and was recently dismissed by no less than John Kelly, former Secretary of Homeland Security and Trump’s Chief of Staff until his resignation on January 2. Speaking at Duke University on March 6, Kelly observed that migrants entering the country illegally were “overwhelmingly not criminals” adding  “They’re people coming up here for economic purposes. I don’t blame them for that.”

The most serious problem at present, however, is not even that of migrants seeking economic opportunity. Rather, it is the flood of migrants from Central America who are, quite literally, fleeing for their lives, primarily to escape domestic  and gang violence. This is a problem that our system at the border was not designed to cope with. Doris Meissner, former Commissioner of the Immigration and Naturalization Service, recently wrote in the Washington Post:

The whole approach the U.S. government takes at the border is geared to yesterday’s problem: Our border security system was designed to keep single, young Mexican men from crossing into the United States to work. Every day, more evidence mounts that it’s not set up to deal with the families and unaccompanied children now arriving from Central America — in search not just of jobs, but also of refuge. The mismatch is creating intolerable humanitarian conditions and undermining the effectiveness of border enforcement.

Commissioner Meissner proposed specific actions for increasing resources of personnel and facilities at the border to handle the current influx:

Steps that could be taken now include devoting money and applying new strategies to the asylum and immigration court systems so they can effectively handle a burgeoning caseload, rather than greatly narrowing who can access them. Building suitable Border Patrol facilities for receiving children and families and training agents and other staff to spot and act upon medical and other emergencies would also be required. The government could foster networks of community-based monitoring and case management programs with legal representation that provide alternatives to detention so migrants are detained for minimal periods, at less overall expense and are treated more humanely, but still appear for their asylum interviews and deportation hearings.

The Trump administration, however, has shown little interest in most of the recommended steps. Rather it has adopted something of a band-aid in the form of a program euphemistically dubbed “Migrant Protection Protocols” (MPP). Under MPP, migrants from Central America who enter from Mexico must remain in Mexico while their requests for asylum are considered. The legality of the program is open to question on various counts and a challenge by the ACLU and other parties is pending. The issues before the court require interpreting various statutory provisions and assessing the safety of applicants for admission if they are forced to return to Mexico. (A request for a temporary restraining order was denied and a motion for a preliminary injunction is under consideration.)

On Tuesday, the government provided an additional band-aid. Acknowledging that its facilities for detaining immigrants were severely overcrowded, the government announced that, at least temporarily, migrant families apprehended in the Rio Grande Valley would be released with a notice to appear at a future date. Thus, the government was returning to the policy of “catch and release” that Trump has frequently enjoyed attacking.

Understanding “catch and release” requires some understanding of the relevant statute. That statute provides for asylum in the case of migrants who are can show “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Over the years, interpretation of “persecution” by the Board of Immigration Appeals has come to include actions by not only governments, but actions by private individuals from whom  governments are  unwilling or unable to provide protection. It has also been held that victims of domestic violence or gang violence can be considered members of a “social group.”

As a matter of procedure, the statute also provides that aliens who were able to show a “credible fear” of persecution are not subject to expedited removal but are entitled to a full hearing before an immigration judge. The “credible fear” test was intended to be a “low screening standard,” not difficult to meet. Aliens who meet the standard and are  awaiting  a hearing (which may be delayed for months or even years), the aliens would be released and not all would appear at the scheduled time. As explained by Stewart Baker in Lawfare:

[V]ery few will actually be granted asylum after the lengthy process of making their case to an immigration judge. The problem is that the prospects for eventual success don’t matter anywhere near as much as what happens while the alien is waiting for the judge to rule…. [C]hildren who cross illegally may not be kept in detention for more than 20 days. They and their parents must be released while they wait for an immigration court to hear their asylum claim. The family remains in the U.S. legally and, in most cases, can get work permits if their case takes more than 180 days to decide. And it will. Due to backlogs and delays in the system, it’s not too hard to string out an asylum appeal for years.

The result of this dynamic is typified by an example Baker cited:, involving“one Honduran caravan member, who traveled to the border because ‘she had heard … that bringing her daughter would guarantee them admission into the United States.’” It is such situations that the government has sought to address by the MPP program.

Apart from problems of facilities and procedures, there is an underlying issue as to who should be granted asylum. In June of 2018, Attorney General Jeff Sessions sought to narrow the grounds for asylum by ruling that “generally, claims by aliens pertaining to domestic violence or gang violence by non-governmental actors will not qualify for asylum. It will seem to many that Sessions’s ruling was not inconsistent with the language of the controlling statute. Nevertheless, on December 17, 2018, District Judge Emmet Sullivan in the District of Columbia ruled in Grace v. Whitaker that it was “arbitrary and capricious” and enjoined its application. (By its terms, the ruling applied only to credible fear interviews, but its reasoning is equally applicable to full hearings.)

However, the Grace case is resolved, the issue deserves the attention of Congress to clarify, and perhaps modify, existing law. A reform of the statutory system of asylum was included, along with a variety of other changes to immigration laws, in the Securing America’s Future Act introduced last year by Judiciary Chairman Rep. Bob Goodlatte. The bill, however, was defeated on the House floor and any proposal that emerges from the Democratically controlled House is likely to be quite different.

The questions that Congress should address in that connection include these: What are our humanitarian obligations  to provide refuge for people fleeing violence in Central America? To what extent, if any, do those obligations differ from obligations to refugees from other parts of the world? How can American aid best be tailored alleviate the specific conditions that impel migration from Central American countries? How many applicants are likely to be admitted under a relatively liberal asylum policy over the medium or long term? What increase in facilities and personnel will be required to handle that inflow? Once asylum seekers are admitted, what are the financial and other burdens required to sustain them?

The Trump administration has repeatedly made a hash of immigration policy. That hash, however, should not obscure the fact that there are difficult issues–moral, political and legal–that must be grappled with. Doing so effectively will require skill, patience and good will.